Georgia has a separate visitation rule for grandparents whose own child has died, and the surviving parent’s objection does not end the case.
The Rule
Under OCGA 19-7-3(d)(1), if one parent of a minor child “dies, is incapacitated, or is incarcerated,” the court may award that parent’s own parent reasonable visitation with the child. The grandparent must show, “by clear and convincing evidence that the health or welfare of the child would be harmed unless such visitation is granted,” and that visitation would serve the child’s best interests.
The statute tells the judge what to weigh. Harm may be found where, before the death, incapacity, or incarceration, (1) the child lived with the grandparent for six months or more, (2) the grandparent provided financial support for the child’s basic needs for at least a year, (3) there was an established pattern of regular visitation or child care, or (4) any other circumstance makes emotional or physical harm reasonably likely without visitation.
A Relationship Has to Already Exist
The statute forecloses the case built on nothing but lost potential. “The mere absence of an opportunity for a child to develop a relationship with a grandparent shall not be considered as harming the health or welfare of the child when there is no substantial preexisting relationship between the child and such grandparent.” OCGA 19-7-3(d)(1).
Why the Statute Reads This Way
In Patten v. Ardis, 304 Ga. 140 (2018), a father died before his daughter was born and the child’s grandmother won visitation from the trial court. The Georgia Supreme Court held the version of OCGA 19-7-3(d) then in force unconstitutional, because it let a judge override a fit parent “without clear and convincing proof” of harm. The harm requirement now in the statute is the answer to that decision.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!